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Libya's Constitutional Moment

By Daniel Wagner and Edsel Tupaz

In our August article entitled Libya's Post-Conflict Reconstruction: Vengeance or Forgiveness?, we noted that the victors in the Libyan conflict had a choice to make: they could either be vengeful or forgiving toward Qadhafi supporters. Since Qadhafi was killed, the pendulum has swung toward revenge. Indeed, vigilantism, vandalism, score-settling, and summary executions have become the norm in Libya today. We wonder to what extent this type of behavior and approach toward the next phase in Libya's post-Qadhafi development is indicative of how the interim government intends to govern, and dispense justice.

The transitional government in Tripoli is for all intents and purposes an Islamist-led government armed with a draft constitution, declaring in its first Article that "Islam is the Religion of the State and the principle source of legislation is Islamic Jurisprudence (Sharia)." The remainder of the document appears to have been drafted with the intent of assuaging Western readers with guarantees designed to off-set Article 1, specifically referencing respect for the rights of non-Muslims, freedom of religious practice, support for a "democratic" multi-party system, equality before the law (now inclusive of women's rights), basic rights to individual property, education, and social security -- all following the standardized catalogue of basic rights characterizing many liberally-oriented states of mixed religions or ethnic composition.

But no amount of normative constitution-drafting can blot out from the books, or the collective memory, Qadhafi's undignified bullet-ridden corpse rotting in a malfunctioning meat locker. This dissonance between the law-in-the-books and the law-in-action is endemic in virtually all liberal societies, and may prove to be an unfortunate precedent for Libya. In redefining its positive constitutional order, will Libya continue to take the path of vengeance along the lines of Iran, or can it adopt an orientation toward tolerance, and republican-style secularism, more akin to Turkey?

Iran's own constitution treats Islamist principles as the only source of law, and makes Iran's faqihs (or jurist-consults) the interpreters of Iranian jurisprudence to the exclusion of all others, subject only to the Supreme Leader (or velayat-e faqih). Turkey on the other hand is visibly a secular republic whose constitution derives its "sovereignty" from "the people"; that sovereignty resides with the "Turkish Nation," while legislative powers are vested in the Turkish Grand National Assembly, a unicameral parliament.

In 2008, Turkey's Constitutional Court declared unconstitutional a legislative measure aimed at lifting the headscarf ban on the ground that the measure (to allow Muslims to wear headscarves) is against the fundamental principles of the Turkish constitution. Libya, Iran, and Turkey are all comprised of Muslim super-majorities, but along the ideological continuum Libya appears to be backsliding into the absolutism of Iran, in stark contrast to the liberal democratic rhetoric the National Transitional Council (NTC) has deployed since February. The NTC and rebels purportedly fought for a "new", "free" Libya in the name of the "free Libyan people," against this "tyranny" and "42-year dictatorship" of Qadhafi -- all aspirational slogans no doubt designed to gain Western support (in the form of NATO airstrikes and money).

In contrast to the 26,000+ sorties and nearly 10,000 strike missions which NATO delivered, NATO's position in post-conflict Libya is distinctly absent. Perhaps NATO is mindful of the possibility of falling into the commitment and debt trap of the U.S. in Afghanistan and Iraq, sensibly distancing itself from whatever comes next, or has simply been politely disinvited from any further influence in the political process, now that the 'mission' has been accomplished. In light of this fence-sitting (or forced 'bystanding'), coupled with Russia's recent veto of a Western-led UN Security Council resolution seeking to impose economic sanctions against Syria and Europe, and America's own distinct resource, political, and financial limitations, the West will let the current mess that is Egypt, Libya, and Tunisia unfold 'organically'. Like the U.S., NATO cannot avoid the ancient paradoxical "imperial dilemma", where occupiers holding even the noblest intentions are faced with the same dilemma as their imperial predecessors and colonizers, which is to impose order from without, using all military means necessary, but in the name of justice, peace, and freedom.

To promote the healing process, and to help Libya transition from four decades of Qadhafi, what Libya needs today is a media-genic war crimes court. In its absence, the NTC reasons that if the people can wait for 42 years for change, they can wait several more months, pending the reorganization of government and its justice system, to begin this process. But if the NTC wishes to be seen to be dispensing meaningful justice, it needs to do so quickly. The interim government should therefore set up makeshift courts if need be, to get the process moving.

As the new Libyan leaders struggle in constitutional draftsmanship, they will make haste in adopting what they conceive to be the best practices of Islamic states. Beyond Turkey, Libya can also look farther to the East -- Malaysia, whose governance and society, though Muslim-led, caters to an increasingly heterogeneous population. Beyond courts, the Tripoli government needs to revisit its case for the "clean break" model it chose, which was also used in post-war Germany and Japan. While the interim government purports to do all it can to disassociate itself from Qadhafi by making that clean cut, the text of the interim constitution speaks otherwise. There really is no time to waste, as the jockeying for influence and power has already begun in earnest. Our hope is that genuine justice, and due process, will not be lost in translation.

*Edsel Tupaz is a professor of international and comparative law, based in Manila. He is a graduate of the Harvard Law School and Ateneo Law School, and can be followed on Twitter at: http://twitter.com/edseltupaz.

Daniel Wagner is CEO of Country Risk Solutions, a political risk consulting firm based in Connecticut (USA) and author of the forthcoming book Managing Country Risk (Taylor and Francis, Q1/2012 - www.managingcountryrisk.com). He can be followed on Twitter at: http://twitter.com/countryriskmgmt.

The authors wish to acknowledge the Associated Press and New York Times for providing some material upon which this article is based.